tag:www.schneier.com,2015:/blog//2/tag:www.schneier.com,2009:/blog//2.2678-2015-02-17T06:28:16ZComments for The Exclusionary Rule and SecurityA blog covering security and security technology.Movable Typetag:www.schneier.com,2009:/blog//2.2678-comment:438501Comment from DR. Bill OGO on 2010-05-23DR. Bill OGO
Gentlemen: A story for your consideration. Unfortunately, it is true and occurred in these United States of Amerika. A no-knock warrant was issued and served 3:30am at my estranged wife's home. I was sleeping in the "living room" while recovering from an injury. I needed assistance to perform certain daily functions. The warrant process was started by an anonymous call of "drug related" activity at the address. Household trash(left outside of the home) was searched on several occasions. Seeds, stems and unburned marijuana were recovered. Residency status for my son and I was found in the trash. My son's MVA(Motor Vehicle Administration) record was obtained(stated in the warrant application) and his DOB(date of birth) determined. His criminal history was"checked" with no arrests found. Curiously, while the house belongs to and is in her name, my estranged wife's records were never researched. My MVA record was not obtained(at least not mentioned in warrant application). Had my MVA record been "run" the storm troopers would have been apprised of my legal address and my date of birth. However, they did possess my full name complete with a rather unusual middle name(part of Mom's Native American heritage). Unbeknown to them I was staying there while an injury was healing. Their sworn affidavit related my violent record of assaults, 1st, 2nd degree, w/wo weapons, handgun violations, robberies, trips to a mental institution and subsequent incarcerations. The record stretched back to 1987. However, it wasn't my record. The record belonged to a person born on a different day; two years earlier. Who is an African-American(I'm of Native American and European stock). Also, he stands five inches shorter and is a 100lbs. lighter. This gross negligence allowed the SS to break down the door and storm(while carrying fully automatic rifles) 15 strong into the home. Additionally, the warrant allowed them to have their way with my family and me. Handcuffed, orally degraded, strip and body cavity searched, deprived of toilet use, hydration, We sat there hand cuffed, door open, freezing..no coats allowed, thirsty and frightened. Deathly afraid that one of the nimrods(SS Troopers) would accidentally shoot one of us(yes it does happen..I've first hand experience). We suffered these indignities until 11:30 that morning; seven hours of degradation, deprivation and dehumanization. As the "authorities" went through our belongings they made snide, trite and sometimes even crude comments. I was a competitive shooter on the national/world level. Therefore, the SS Troopers found my target and personal protection handguns. Thinking they had hit the triple play; a convicted felon with guns and drugs, one said,(if they can lie I can embellish)..."quick someone call the press." The idiots started combing their hair, making certain personal uniforms were correct. Two changed their foot gear!! The "cops" danced gleefully with visions of commendations and promotions in their eyes. However, at my estranged wife's constant, nagging, bitching insistence their joy was short-lived. Apparently one of the SS-Unterscharführers ran the proper name and DOB. The festive atmosphere soon chilled as the truth about my status as a SUPERVILLIAN was debunked. Finally, a small amount of a substance which appeared to marijuana was found in my son's room. He was hauled off to jail. Two weeks later the wife and I were charged with possession of marijuana and paraphernalia. Guess the SS and Gestapo hierarchy had to charge us with something. Was it worth endangering so many lives, spending an obscene amount of money(especially during the worst economic slowdown this country has ever had) for so little a return. Does any thinking man/woman believe that raid was worth the price? Aren't we humans supposed to be a intelligent animal? Which learns more and more daily with each experience? If a bust during prohibition netted a single bottle of beer and a couple of empty bottles the arresting officers would be laughed off the force!! Today, nothing happens, "oh well another citizen loses their rights". When will this country learn. Whatever it's called; prohibition doesn't work and never will.]]>
2010-05-23T09:13:34Z2010-05-23T09:13:34Ztag:www.schneier.com,2009:/blog//2.2678-comment:353718Comment from John David Galt on 2009-02-28John David Galt
They've already raided a popular (and innocent) mayor's house. Maybe someday soon one of those "accidental" midnight SWAT-team raids will hit the home of a member of the Supreme Court. *Then* they'll get it right.]]>
2009-03-01T03:40:56Z2009-03-01T03:40:56Ztag:www.schneier.com,2009:/blog//2.2678-comment:350663Comment from HJohn on 2009-02-17HJohn
@Chuck King: " The innocent man arrested without probable cause derives no benefit from this rule."
_________

My apologies for delay, I was banished to a place last week where there was no Internet access (it was heaven I think).

I agree with you in the "after" sense. The exclusionary rule provides no benefit to an innocent person after he is arrested or searched and every benefit to the guilty. I admit this is troublesome. However, the key word is "after."

Innocent people are the ones more likely to benefit before the search even takes place. The exclusionary rule would be incentive to ensure information is accurate and fewer innocent people would be searched. I don't know that stats are available, I am unaware of any, but I would wager that the number of innocent people searched by mistake would dwarf the number of people searched who just happened to be guilty of a serious crime--I'm so sure of this that I would be my wife on it. But not my Playstation.

Best regards,
John

]]>
2009-02-17T21:16:59Z2009-02-17T21:16:59Ztag:www.schneier.com,2009:/blog//2.2678-comment:350210Comment from Chuck King on 2009-02-15Chuck King
As Ernest van den Haag has pointed out, and I'm paraphrasing, the exclusionary rule offers no advantage to innocent defendants. It merely serves to exclude evidence of guilt. The innocent man arrested without probable cause derives no benefit from this rule. When the rule of the "fruit of the poisoned tree" came into vogue in the '60s, it quickly became a career criminal's best friend...is there an advocate out there for the dead victims of those violent criminals freed only because of exclusionary rule technicalities? Would not sanctioning police for illegal searches be a better way to offer the correct incentive for proper investigative conduct? ]]>
2009-02-15T19:43:26Z2009-02-15T19:43:26Ztag:www.schneier.com,2009:/blog//2.2678-comment:350185Comment from John Messing on 2009-02-15John Messinghttp://www.messinglawoffices.com
This comment regards technical legal rules, that like the exclusionary rule, can have important real world effects. While I agree with the points Bruce makes, there is another part of the picture that can and should be considered.

Database information by definition is a collection of records. The information contained in it, when offered in court, is asserted for the truth of the matter stated. The net result of these propositions is that before the information can be used as evidence in an American court, it needs to pass two hurdles. First it must pass legal authentication, which is different from computer or electronic authentication as it has come to develop in the electronic world, and it must fall within an exception to the hearsay rule.

The different views reflect an ongoing debate in a small section of the legal community on the relationship between information security and needed or unnecessary rules concerning reliability of digital evidence as they relate to traditional rules of evidence in an oral and hardcopy evidentiary world.

The importance is underscored by the proliferation of legal agreements between law enforcement entities for sharing database information between them. For an example of such sharing in the immigration context, please view the MOU's (memoranda of understanding) between law enforcement entities and DHS obtained by the Yale Law School Worker and Immigrant Rights Clinic, http://islandia.law.yale.edu/wirc/287g_foia.html. Such information sharing is proceeding apace in the US using such open standards such as SAML and WSS.

Unfortunately, many legal professionals do not yet appreciate the fact that collections of records are no more reliable because they are being stored and served up by an electro-mechanical device rather than a human clerk, and miss the available evidentiary objections to digital evidence, with often disastrous results for the litigants. In the criminal immigration area, this tendency is most common in the routine admission of digital fingerprint evidence to tie identity determinations in earlier records of deportation to a particular illegal re-entry defendant. Defense lawyers assume that the digital fingerpring information is accurate because it came out of a computer and fail to put the Government to the test of establishing the foundation (legal tests of reliability) that are described in the context of the In re Vee Vinhee and Lorraine v. Markel case.

While the subject of this rather long posting will not necessarily impact exclusionary rule cases, it perhaps does touch upon a broader and more ominous development in the law which results more from a lack of understanding and education of legal professionals than from any one misguided decision in the developing body of the law of digital information and evidence.

]]>
2009-02-15T14:24:26Z2009-02-15T14:24:26Ztag:www.schneier.com,2009:/blog//2.2678-comment:346777Comment from HJohn on 2009-02-03HJohn
@boris_kolar: "I strongly disagree with exclusionary rule. Evidence should be taken into account no matter how it was obtained. After all, the purpose of evidence is to determine the truth. Excluding evidence is inconsistent with effort to learn the truth. Obtaining evidence illegally should be a crime by itself, but it should not invalidate the evidence. Doesn't the term "excluding an evidence" seem obviously irrational?"
__________

I agree with your concept, even though I took the rare and painful position of siding with Breyer over Scalia.

I don't think it is that anyone here wants evidence excluded. All of us on both sides want accurate and valid evidence in criminal proceedings, and we want due process. Where we differ is on how to best meet that end. I've come to some difficult conclusions that I've already said, but that I will repeat (combine into one post) in response to your comment and your valid concerns.

Fellow bloggers, forgive the redundancy, but I think boris' concern is valid and I want to summarize a response buried in over 100 comments.

1) The chances of the information being accurate is far more likely if it is generally useless otherwise. As it stands now, they authorities have little incentive to correct errors. If it is right, they can use it. If it is wrong, from their perspective, they search someone else and may catch another criminal.

2) In this case, the person clearly broke the law. However, I think that would be a rarity. Much more common would be searching someone by mistake, something that is forgivable if it is rare, but that we want to keep to a minimum. If we know such errors exist, we want every incentive for them to be corrected.

3) Most police officers are fine people who would risk their lives for the safety of complete strangers. That said, they are bound by due process for a reason. A cop who is "sure" someone is guilty should not be able to use intent disguised as a mistake to bypass due process.

4) I struggle with this because I don't like seeing the guilty get a pass any more than I like seeing the innocent get harrassed, I just think seeing the innocent get harrassed would be more common. However, I would not mind a serious felony exception. If you execute a warrant on the wrong person and find a dead body or a kidnapped child in their trunk, or a restrained rape victim in their home, then it would be more of a travesty to let it go. This would be an extremely rare, ticking bomb type scenario. In general, dismissing more common findings, like drugs, theft, piracy, etc., would provide an incentive to get the documentation right--something that would protect our freedoms and the integrity of the evidence in the long run.

Best regards.

]]>
2009-02-03T22:19:58Z2009-02-03T22:19:58Ztag:www.schneier.com,2009:/blog//2.2678-comment:346107Comment from Moderator on 2009-02-01Moderator
RichieRich, I'm removing your comment because you repeated points already made in this thread, only in more incendiary language. If you want to comment here, please calm down, read the thread, and join the conversation in a way that moves it forward, rather than bringing it back to square one. Thank you.]]>
2009-02-01T21:20:30Z2009-02-01T21:20:30Ztag:www.schneier.com,2009:/blog//2.2678-comment:345668Comment from A on 2009-01-31A
I don't think the exclusionary rule is the *only* way to deter police from doing bad stuff and keep the right to privacy. If the police have final accountability to the right people, and discipline officers well, that can be as secure as a legal rule enforced by judges; remember judges aren't perfect either. But in the U.S., we don't have that accountability and tight regulation; we just have the exclusionary rule, and we should keep it.

I've heard it said that if you never lose your car keys, you're being too careful. The underlying principle is that you need marginal benefits and marginal costs to balance out -- if your costs are *zero*, the balance may be wrong. It's not a principle that applies everywhere -- if your nuclear plant has never melted down, it doesn't mean you're being too careful -- but its instructive here.

Privacy needs strong protections; it's important, and the incentives to violate it are strong. If, in our quest to enforce privacy, we truly don't impose *any* cost on law enforcement -- if we don't see *any* cases where properly applying the rules causes real inconvenience to the police -- then we're probably not changing police behavior at all, and we're almost certainly not giving due weight to a right that's always at risk and is critical to a free political system and valuable to people in its own right.

If U.S. police professional conduct standards were strong enough to match the interest in privacy -- "Constitutional-strength" -- then, first, you'd know it, because someone would be out there complaining about the overbearing restrictions on policework, and second, it would be justifiable to ease the exclusionary rule -- to weigh the importance of the crime and of the evidence against the deterrent value of excluding it. Four concrete things you'd need, speculatively: one, a system of review, so that a local police department can't go rogue; two, strong rules and independent internal investigators; three, what's been called a "civil service tradition," in which enough of the employees follow the rule of law most of the time, even if politics or personal or popular prejudices produce lots of pressure; and four, final accountability to the right people (heck, maybe find some folks who were mistakenly convicted and have them help govern the police), so that the bureaucracy doesn't, over time, veer towards becoming a machine to get as many convictions as possible, to heck with the other consequences.

It's funny -- when you list the elements you'd need in order for the police to reliably restrain themselves from violating people's rights, it sounds a lot like building a court system within law enforcement.

"Obtaining evidence illegally should be a crime by itself, but it should not invalidate the evidence. Doesn't the term "excluding an evidence" seem obviously irrational?"

No for exactly the reason you state it was "obtained by a crime".

If the evidence is not excluded then the method by which it was obtained has to be put before the jury.

The jury then have the choice of beliving a person of unknown honesty against one who has taken an oath to uphold the law and admits in court to having broken the law...

I think a defence lawyer of even modest talent can throw sufficient doubt on the prosecutions "burden of proof" to put it well outside of "beyond reasonable doubt".

The rule therefor also protects not just the court system and the police officer (who may have acted in inocence) but actually increases the likley conviction should other evidence be available.

To see why ask yourself a question,

Irrespective of if you belive OJ Simpson was guilty of murder or not, what do you think made the jury decide to reject the evidence presented?

]]>
2009-01-31T00:08:33Z2009-01-31T00:08:33Ztag:www.schneier.com,2009:/blog//2.2678-comment:345570Comment from boris_kolar on 2009-01-30boris_kolar
I strongly disagree with exclusionary rule. Evidence should be taken into account no matter how it was obtained. After all, the purpose of evidence is to determine the truth. Excluding evidence is inconsistent with effort to learn the truth. Obtaining evidence illegally should be a crime by itself, but it should not invalidate the evidence. Doesn't the term "excluding an evidence" seem obviously irrational?]]>
2009-01-30T23:19:36Z2009-01-30T23:19:36Ztag:www.schneier.com,2009:/blog//2.2678-comment:345569Comment from Clive Robinson on 2009-01-30Clive Robinson
@ tomJ

I am actualy aware of a case like this except for step 1 needs to be replaced with.

0, An officer with an agender supplies false information to another unsespecting officer.

1, the second officer stands before the judge and presents the false information beliving it to be true.

Further down the line when the little shenanigans is uncovered by studidity of the officer with an agender. The second officer takes early retirment on full pension.

And no action is taken against the officer with the agender.

Why because his agender is not his own but that of a very senior member of his organisation (director level) who has set the agender due to the very public failings of the organisation to their political masters.

]]>
2009-01-30T23:19:20Z2009-01-30T23:19:20Ztag:www.schneier.com,2009:/blog//2.2678-comment:345538Comment from tomj on 2009-01-30tomj
The police always win by this sort of thing. A worse abuse of the following:

1. On police officer lies to get a search warrant.

2. A different officer executes the warrant and isn't aware of the lie.

3. search warrant is defective, but evidence can be kept, even though it was obtained by lies.

But we can be sure that this type of thing would never happen on purpose.

Also, I can't believe this whole thread, which even included some "libertarians" and "objectivists" (well, to be fair, Ms. Rand was speaking in general terms only), let go unchallenged the assertion that "this is a really bad guy!"

What? Because he had drugs and a gun? I have those things. Any reasonable person has those things. Any government that makes mere possession of them illegal, rather than actual harmful acts against others, is tilted pretty close to the "tyranny" end of the scale.

I don't go in for the child porn that so fixates Brendan, but even if that should be criminal, it isn't nearly enough of a problem to justify police misconduct. Surprisingly few people seem to have noticed that that's the actual topic under discussion: police breaking the rules meant to protect society, and being rewarded for it. Only our government's vigilant apologists will be surprised by what comes next.

]]>
2009-01-30T02:23:11Z2009-01-30T02:23:11Ztag:www.schneier.com,2009:/blog//2.2678-comment:345117Comment from Will on 2009-01-29Will
The police can leave a warrant in place even after it has be quashed and then have reason to harass the person with the warrant. Happens quite often.
I believe I read somewhere else on this case that the cops call the other department and were told there was no warrant and the went ahead and messed with this guy.]]>
2009-01-29T16:12:43Z2009-01-29T16:12:43Ztag:www.schneier.com,2009:/blog//2.2678-comment:345056Comment from Anonymous on 2009-01-29Anonymous
Julian Gall: "Suppose the police had found a dead body in the house. Should they not be permitted to arrest the man?"

You are incorrect in your view of the exclusionary rule , but don't worry this is common.
The rule would not allow the cops to use any evidence obtained through illegal means, but it does not prevent the finding of other legally obtained evidence, and prosecution from the it.

]]>
2009-01-29T13:25:21Z2009-01-29T13:25:21Ztag:www.schneier.com,2009:/blog//2.2678-comment:345053Comment from seks on 2009-01-29sekshttp://www.fantazisepeti.com
Minor factual dispute: they didn't search his home, they searched his car: "A search incident to the arrest revealed methamphetamine in Herring’s pocket, and a pistol (which as a felon he could not possess) in his vehicle." Slip opinion, page 2.]]>
2009-01-29T13:16:56Z2009-01-29T13:16:56Ztag:www.schneier.com,2009:/blog//2.2678-comment:345052Comment from mantar on 2009-01-29mantarhttp://www.kirmizimantar.biz
If anything, cases like this where the warrant turns out to be erroneous, should be the greatest incentive for the police to clean up the databases and pull their act together. Not be seen as a chance to make everything worse.

Whenever they contemplate knocking down a door the first thought in their minds should be "Am I 100% certain the warrant is valid or risk letting the guilty go free?".

]]>
2009-01-29T13:15:38Z2009-01-29T13:15:38Ztag:www.schneier.com,2009:/blog//2.2678-comment:345032Comment from Bookem Danno on 2009-01-29Bookem Danno
> If the police search your home without a warrant and find drugs

Better to prosecute BOTH you for the drugs and the police for burglary.

]]>
2009-01-29T11:39:34Z2009-01-29T11:39:34Ztag:www.schneier.com,2009:/blog//2.2678-comment:345017Comment from EH on 2009-01-29EH
Honest mistakes indeed happen, but honesty can be faked.]]>
2009-01-29T09:30:31Z2009-01-29T09:30:31Ztag:www.schneier.com,2009:/blog//2.2678-comment:345012Comment from Martin Andersen on 2009-01-29Martin Andersen
Think of all the unwarranted searches that must have preceded this one, where they just happened to stumble upon evidence of (other) crimes.

Given the statistical likelihood of this happening, one would expect hundreds of broken doors, shattered social lives and a huge loss of faith in the authorities for every story like this one.

If anything, cases like this where the warrant turns out to be erroneous, should be the greatest incentive for the police to clean up the databases and pull their act together. Not be seen as a chance to make everything worse.

Whenever they contemplate knocking down a door the first thought in their minds should be "Am I 100% certain the warrant is valid or risk letting the guilty go free?".

]]>
2009-01-29T08:42:40Z2009-01-29T08:42:40Ztag:www.schneier.com,2009:/blog//2.2678-comment:344997Comment from MBC on 2009-01-28MBC
Minor factual dispute: they didn't search his home, they searched his car: "A search incident to the arrest revealed methamphetamine in Herring’s pocket, and a pistol (which as a felon he could not possess) in his vehicle." Slip opinion, page 2.]]>
2009-01-29T05:09:29Z2009-01-29T05:09:29Ztag:www.schneier.com,2009:/blog//2.2678-comment:344994Comment from J.E. Andreasen on 2009-01-28J.E. Andreasen
First, I agree with Bruce on the huge level of errors in these databases, and the adversities they cause. I run a small construction subcontracting business. In the past month alone, two of my fifteen long-time employees suffered the results of these database errors:
1. Just before Christmas, one of my employees was driving (with his crew of five) from a jobsite and became ensnared in a DUI checkpoint. All the men checked out as having consumed no alcohol. They were then racially profiled, and intimidated into producing their driver’s licenses. The police ran “wants and warrants” on every one. The computer (erroneously) showed a suspended driver’s license for the driver. He was arrested and jailed. His van (including thousands of dollars in trade tools (many rented) used by the entire crew was seized and towed. The other men had to call for rides to their homes forty miles away. My employee bailed out the next day. He was informed that the truck and tools incurred a towing charge and storage charges of $15 per day until released by the court. The hearing on the charges and seizure was to be a month away, at the earliest.
2. At about the same time, my young bookkeeper arranged a New Years party for family and friends at the family home. Notice & invitations had been sent out weeks prior & the neighbors were all invited. Eight thirty in the evening on New Years Eve local police knock on the door relaying a noise complaint over the music. The noise ordinance is 90 minutes from even applying. The cop asks them to turn the music down (they do) and then asks my employee for his driver’s license so he can “write a contact report” on the visit. The cop comes back after running the license and says that there is a bench warrant out for the employee from another city. The employee says that is in error (a previous court clerk error tied to a bogus charge), had been since corrected, and the bench warrant quashed. He offered to show the officer the paperwork from the court to prove the error. The cop refused, and radioed for “backup”. The employee tries to call his lawyer on a cell phone to clear the matter up. The cop grabs the phone, handcuffs the kid (22 year old), frog marches him to the squad car. Four other cars arrive. The party is ruined people are literally running away. The relatives collect over $600 to bail the kid out at 3:00 a.m. the next morning. Part of the money was for the mortgage payment on the family’s home. The attorney is called; he is furious. A hearing occurs several days later. The attorney for the city where the “warrant” originated says they can’t find their paperwork. The judge gives the city a couple of weeks to find it, refuses to look at the documents from the accused, and schedules the next hearing. Meanwhile, the city keeps the money.
It is my contention that the purpose of the exclusionary rule is to constrain not just the beat cop, but the entire system from benefitting from constitutionally suspect fourth amendment conduct. If the criminal justice system abuses people’s liberty not due to blatant, particularized malice, but because they simply do not care, we guarantee more molestation like the stories above. The majority in this case reinforces a grand tradition of not having a clue what actually occurs at the hands of their praetorians, and, if they do, not giving a rats a**.
]]>
2009-01-29T04:35:20Z2009-01-29T04:35:20Ztag:www.schneier.com,2009:/blog//2.2678-comment:344974Comment from Neighborcat on 2009-01-28Neighborcat
Setting aside (please?) what anyone thinks of law officers, prosecutors, judges, criminals, the presumed guilty, the improbable innocent, crime, punishment, the course of empires... etc... I'd like to return to where Bruce's original post relates information security and law enforcement as systems. (incidentally, that is why this post is precisely on-topic in this forum.)

Regardless of any individuals intent or the particulars of this one specific case, the ruling does not merely ignore the issue of bad data and bad database design, it creates a DIS-incentive to improve the system.

A second problem with this ruling as a precedent that I have not heard addressed:

The search was illegal under the law at the time it occurred. "I mistakenly thought what I did was legal because of erroneous information from a database." is now a valid defense for breaking the law- as long as it is being used by law enforcement. Will defendants also be allowed this defense? If not, why not?

In official reports in the not to distant past they have been found to have been "Institutionaly racist" and suffering from a "canteen mentality".

In more recent times they have sought to cover up failings at a very senior level and have been accused of lying under oath over the death of a Brazilian suposadly mistaken for a (possible) terroist suspect.

This was not the first occasion when the Met had shot compleatly inocent people and tried to pass of their actions onto their unfortunate victims.

Shortly after the Stockwell debacle when armed police officers where arresting terror suspects a journo overheard two armed officers joking that "did you see them s**t themslves when the got the marksman's messels". Refering to the red points from lazer sights on the suspects.

On other previous occasions they have been found wanting in many many respects.

A recent case I personaly witnessed was when two police officers goaded a homeless person into trying to get away then beat him with their batons. When other police support arrived they joined in with one officer kicking the man in the head whilst he was on the ground. This occured in a public park infront of many many witnessess many of them very young children and their parents from three nearby schools. The police later anounced that the man had violently resisted arrest and had been found in posession...

I'm personaly aware of other quite serious failings by the Met and now generaly treat them in the same way I would a group of drunken adoleccents, ie I cross over the street to avoid them.

There are good police officers in the Met and I know several, and they also share my view that in general avoiding the police is a not unwise thing to do. Why, because they have seen it change due to "target driven" policing where an officer has to fill their quoter so the top dogs get their bonus...

"...too little government and we lose our freedom due to extreme disorder (anarchy)."

I do not like the word "anarchy" as it is a word that due to infrequent misuse has changed it's meaning with time.

Living without being "governed" does not in any way imply that we will "lose our freedom due to extreme disorder".

In societies that have an ethos of "stewardship" not "ownership" a government is usually superfluous.

"Extreme disorder" is usually a by product of assumed ownership over a limited resource such as water. Where the party that assumes ownership denies access to others who due to self presevation resort to wresting the resource from the party that has sought to control it against the more common good.

]]>
2009-01-28T23:46:26Z2009-01-28T23:46:26Ztag:www.schneier.com,2009:/blog//2.2678-comment:344949Comment from Two Edged Sword on 2009-01-28Two Edged Sword
Imagine the wrong was done BY the error being in the data base,
and the police could seek to exclude their errror from evidence?]]>
2009-01-28T23:21:13Z2009-01-28T23:21:13Ztag:www.schneier.com,2009:/blog//2.2678-comment:344944Comment from Bargepole on 2009-01-28Bargepole
It was Cardinal Richelieu.

(If one gives me six lines in the handwriting of the world's most honest man, I'll find in them something to hang him.)

There is no such thing as someone with nothing to hide. It all depends on who's looking.

(You could easily construct an argument to say this post itself is evidence that I have something to hide or why would the question even remotely interest me? Why am I looking at a security blog? Why am I posting pseudonymously? Pull me in! Now! I clearly have something to hide! Let's find out what it is!)

]]>
2009-01-28T22:57:35Z2009-01-28T22:57:35Ztag:www.schneier.com,2009:/blog//2.2678-comment:344942Comment from another bruce on 2009-01-28another bruce
brendan, i'm getting a little tired of you. ayn rand was not a "liberal dyke". she was an objectivist heterosexual. you're debugging a new driver in your lab while you're posting all this shit? your comments have bugs, and the bugs in your driver will have comments after you're done.

oh devinb, now you want to investigate the glitch in the computer that stored the expired warrant? we can do that! when i bailed out of the justice industry in 1995 because i couldn't stand it for another minute, my billing rate was $250/hour. my opposing counsel charges at least that much, our respective expert computer witnesses charge a king's ransom, and the judge up there earns a hundred and a half grand/year, to say nothing of the clerk, the bailiff and the reporter. after we're done investigating the computer glitch, let's investigate whether the officer took a bribe to create the computer glitch, then we can investigate whether a jailhouse snitch improperly implicated the officer in return for a reduced sentence, then we can investigate the underlying facts of the snitch's incarceration...

litigation breeds more litigation breeds more litigation. i know this because i helped breed it for fifteen years, as sire, dam and midwife. if you've got the dime, i'll make the time. the exclusionary rule is what stops my erstwhile colleagues from breeding new litigation until the parties 1) run out of money to pay them, 2) get distracted by an AMAZING NEW DEVELOPMENT (tm), or 3) die.

]]>
2009-01-28T22:42:04Z2009-01-28T22:42:04Ztag:www.schneier.com,2009:/blog//2.2678-comment:344939Comment from Moderator on 2009-01-28Moderator
Brendan, I'm about to remove the most obnoxious of your comments. You may not continue to fling around childish insults on this blog. Participate civilly or don't participate at all.]]>
2009-01-28T22:23:50Z2009-01-28T22:23:50Ztag:www.schneier.com,2009:/blog//2.2678-comment:344938Comment from brendan on 2009-01-28brendan
my term liberal vaguery was in response to this brilliant post: "When you can't catch criminals, make criminals out of the people you can catch."

-I would think a nonsensical post like that would stir more anger than me calling it liberal vaguery.

Also sarcasm does not transmit over forums...which is what the Ayn Rand comment was.

Part of the problem is the media which is like a blood sucking vulture which loves to showcase the awful instances of corrupt policemen and ignores the hundreds of good deeds which are done everyday.

It's not that "all cops do is set up innocent people." It's that police officers are only human. Being human, they rationalize more than they think. They come to conclusions first, then seek the evidence to back them up. To the average police officer, a suspect is NOT innocent until proven guilty, he is simply guilty. (Otherwise why would he have arrested the guy?)

That's not a slam against police officers in any way, it's simply how people are.

This is why the system is set up the way it is. Not because police officers are scum who like the torment the innocent. But because police officers are mostly righteous human beings who are willing to do what it takes to put the guilty behind bars. Even if it means bending the rules here and there, or outright framing someone who *really* deserves it.

Of course your use of the term "liberal vaguery" indicates that you have zero interest in an honest, rational discourse here, so one wonders why I even bother....

]]>
2009-01-28T21:53:40Z2009-01-28T21:53:40Ztag:www.schneier.com,2009:/blog//2.2678-comment:344934Comment from brendan on 2009-01-28brendan
"When you can't catch criminals, make criminals out of the people you can catch."

What a brilliant example of liberal vaguery, showcasing the subconscious aspect of anonymous' mind which feels all cops do is set up innocent people.

]]>
2009-01-28T21:44:07Z2009-01-28T21:44:07Ztag:www.schneier.com,2009:/blog//2.2678-comment:344932Comment from brendan on 2009-01-28brendan
HJohn - I hear you, it is really tough.

Savik - not a bad idea.

]]>
2009-01-28T21:41:16Z2009-01-28T21:41:16Ztag:www.schneier.com,2009:/blog//2.2678-comment:344931Comment from DevinB on 2009-01-28DevinB
@another bruce
Once again, I agree with everything in your statement except your opinion.
Yes, I'm aware that it would require a factual adjudication. Although I would have been much less eloquent.
I think that MORE investigation and more factual evidence is good. If we discover that there was a glitch in the computer, the reaction should NOT be to discount the evidence but rather to investigate the glitch. If there was no glitch but rather a person forgetting to deactivate the warrant, then we should investigate that.
Yes it takes time and money, but I strive for the truth. And (this statement will get me in trouble, but you know what I mean) the unvarnished truth will condemn no innocent man.

Poetry aside, I don't like "knee-jerk" laws such as a blanket exclusionary principle. That why we have judge-made law and precedence to define parametres.

And to your "infinite concatenation of adjudications" That would only be if there is an infinite concatenation of suspicious or irregular circumstance.
Possible of course, but wouldn't that be WORTHY of investigation?

]]>
2009-01-28T21:40:10Z2009-01-28T21:40:10Ztag:www.schneier.com,2009:/blog//2.2678-comment:344929Comment from Savik on 2009-01-28Savik
If a crime was committed - any evidence should be submissable no matter how it was obtained.

IF an officer obtains it illegally though - he should lose his job or be charged criminally...separate the offense of the officer from the offense of the criminal.

This way society is protected by maintaining the ability to prosecute and convict a criminal while punishing those that breach other principles that we hold dear.

...Experienced participants in online forums know that the most effective way to discourage a troll is usually to ignore him or her, because responding tends to encourage trolls to continue disruptive posts — hence the often-seen warning: "Please do not feed the trolls".[11]

]]>
2009-01-28T21:32:36Z2009-01-28T21:32:36Ztag:www.schneier.com,2009:/blog//2.2678-comment:344927Comment from anonymous on 2009-01-28anonymous
When you can't catch criminals, make criminals out of the people you can catch.]]>
2009-01-28T21:29:19Z2009-01-28T21:29:19Ztag:www.schneier.com,2009:/blog//2.2678-comment:344926Comment from another bruce on 2009-01-28another bruce
@devinb:

your position requires an independent factual adjudication of whether the expired warrant was deliberately or negligently left in the database. the nature of independent factual adjudications is that they 1) consume finite judicial/public resources, and 2) frequently lead to other factual adjudications to determine whether or not a witness at the first factual adjudication was lying.

the way we conserve finite judicial/public resources and preclude a potentially infinite concatenation of factual adjudications is known as the exclusionary rule. i support it.

]]>
2009-01-28T21:27:28Z2009-01-28T21:27:28Ztag:www.schneier.com,2009:/blog//2.2678-comment:344925Comment from Ayn Rand on 2009-01-28Ayn Randhttp://en.wikipedia.org/wiki/Atlas_Shrugged
There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted and you create a nation of law-breakers.]]>
2009-01-28T21:27:20Z2009-01-28T21:27:20Ztag:www.schneier.com,2009:/blog//2.2678-comment:344923Comment from Robert Jackson on 2009-01-28Robert Jacksonhttp://www.peeniewallie.com/2007/03/when-everything.html
With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.]]>
2009-01-28T21:24:51Z2009-01-28T21:24:51Ztag:www.schneier.com,2009:/blog//2.2678-comment:344920Comment from HJohn on 2009-01-28HJohn
@DevinB: "The term "misuse of the loophole" implies that there is a "valid use of the loophole"."
____

I certainly didn't mean it that way. I do not think there is a valid use of the loophole. It's an issue of inadvertant or deliberate, and it is really hard to prove something was intentional.

]]>
2009-01-28T21:17:51Z2009-01-28T21:17:51Ztag:www.schneier.com,2009:/blog//2.2678-comment:344919Comment from DevinB on 2009-01-28DevinB
The term "misuse of the loophole" implies that there is a "valid use of the loophole".
The loophole that we're discussing is that if someone enters a warrant into the system then does not delete it, then the police will act on it and the evidence will be valid.
However, there is nothing I've read that indicates such an act would be legal in ANY case.
This precedent has NOTHING to do with people who would misuse the computer system to cause invasions of privacy.
That could have been done before, and still can be done.
If an officer creates a fake warrant and enters it into the system, this precendent CANNOT (or at least SHOULD NOT) be used to defend that evidence.
The narrow inturpretation of this case is that computer errors of THIS SORT which lead to evidence does not destroy the evidence itself.
As soon as you add a willful party into the equation, you have completely changed the discussion.
]]>
2009-01-28T21:14:52Z2009-01-28T21:14:52Ztag:www.schneier.com,2009:/blog//2.2678-comment:344915Comment from HJohn on 2009-01-28HJohn
@brendan: "Well I am sorry, you must excuse me I am writing this in between debugging a new driver in the lab. If due process fails I would still favor vigilante justice over him walking scott free"
_________

You are forgiven, forget about it.

What you don't realize is that I'm a very conservative person, and I am a big supporter of 4 of the 5 justices who made this ruling. I sometimes get into lively debates with others because I tend to be more conservative than most. This issue is a difficult one for me since I badly want the guilty to be punished for severe crimes. Nothing about my opinion is based on not caring about whether the guilty are punished. Everything about me wants to say it was an honest mistake, punish him. He certainly deserves it. But when applying the risk, I see the misuse of the loophole as impacting more innocent people. I would find the odds of, just by chance, finding evidence of something severe to be very very rare, whereas harrassing innocent people may be common.

Sometimes due process fails. It happens. The burden of proof is great enough that we may end up letting someone guilty off so that someone who is innocent may not be imprisoned. It is a trade off.

It is really a tough issue.

]]>
2009-01-28T21:00:04Z2009-01-28T21:00:04Ztag:www.schneier.com,2009:/blog//2.2678-comment:344913Comment from Michael Ash on 2009-01-28Michael Ashhttp://www.mikeash.com
Vigilante justice is just as much a failure of the system as letting a guilty man go free.

Make no mistake: nobody here WANTS guilty people to go free. But many of us believe that sometimes you MUST let guilty people go free in order to protect the innocent.

It's a tough game to play. But the answer is not to punish people you're "really sure" are guilty when the system lets them off. If the system is systematically freeing guilty people then concentrate on fixing the system, but only if the changes do not result in punishing the innocent.

]]>
2009-01-28T20:59:05Z2009-01-28T20:59:05Ztag:www.schneier.com,2009:/blog//2.2678-comment:344911Comment from brendan on 2009-01-28brendan
Well I am sorry, you must excuse me I am writing this in between debugging a new driver in the lab. If due process fails I would still favor vigilante justice over him walking scott free. ]]>
2009-01-28T20:53:51Z2009-01-28T20:53:51Ztag:www.schneier.com,2009:/blog//2.2678-comment:344910Comment from HJohn on 2009-01-28HJohn
@brendan: "in my example you are ignoring the fact that I assumed due process failed. Due process does not always work. So would you rather see the person walk away scott free or have justice actually served? In the case of Madoff he is clearly a sociopath who has no remorse for his actions. I do not live my life as a movie, I hardly watch any movies or TV other than history or discovery. If you have any sympathy for Madoff than you are a pussy who needs to realize the harsh realities of life and death."
_______

Brendan, you have gone way overboard. I've expressed some agreement with you, and some concern, and because I don't follow you I'm a wimp (a kinder name than what you called me)?

Where did I express sympathy for Madoff? I didn't. I have none. My comment is not about him, it was about the legality and rights of someone to take the law into their own hands to take care of a scumbag.

You're being a jerk, and you are out of line.

]]>
2009-01-28T20:45:32Z2009-01-28T20:45:32Ztag:www.schneier.com,2009:/blog//2.2678-comment:344907Comment from another bruce on 2009-01-28another bruce
@devinb:

liberty and order are antithetical, but paradoxically, both necessary to the individual pursuit of happiness. let me show you the metascene:

all social organizations larger than a tribe are doomed to collapse under their own weight. our uncle sam is stumbling about, dead on his feet like a wounded zombie. antisynergy, as last seen in the old soviet union in the late 1980's, will come here too, it is an economic force impersonal, implacable and unstoppable.

as a side note, i'm wondering where the moderator is. i envision a kindergarten teacher abandoning her class for a hair appointment, and the toddlers are rioting in her absence. i call not for the deletion of any of these comments, which would subtract from the comic synthesis, just for the reminder of a benevolent orderly presence.

Thankfully, we have due process. It isn't perfect, but I don't like the idea of shooting someone in the head because you are "just sure" he screwed some people out of some money.

I fully understand the police wanting to lock up scumbags who hurt people. But, without the trial, all the evidence, the defense case, and everything else, the cop may very well be wrong. Even if every cop were stellar and right 99% of the time--which would be an impressive accuracy rate--that would still be a large number of innocent people with their lives shattered.

Jack Bauer is good on TV, bad in reality.

]]>
2009-01-28T20:36:39Z2009-01-28T20:36:39Ztag:www.schneier.com,2009:/blog//2.2678-comment:344905Comment from DevinB on 2009-01-28DevinB
@ a few people
I've noticed a lot of the people who are against the ruling mention "honest mistakes", or things "accidentally" not being deleted.
I would like to make clear that I am NOT supporting any corruption of any sort. Which includes circumventing the correct paper trail. I would consider any thing which deserves to be air-quoted to be an illegal misuse of power. Anyone caught using such a loophole should be fired, because that amounts to obstruction of justice.

I am speaking of actual honest mistakes. Which is what this court case was about. As Schneier has mentioned many times, bad guys or (in this discussion) "corrupt cops" will find ways to achieve their goals, regardless of the loopholes we close.

My argument is simply that because they were following up on a "valid" warrant, one which was not maliciously created out of thin air, then the evidence gathered should be valid.

Once again, if there is any indication that someone tampered with the warrant in order to cause an "accidental" invasion, that person should be removed.

]]>
2009-01-28T20:34:22Z2009-01-28T20:34:22Ztag:www.schneier.com,2009:/blog//2.2678-comment:344902Comment from brendan on 2009-01-28brendan
"Very true. I can see where a good police officer, after seeing enough blood, violence, and corpses, would decide he was doing a favor by making sure the person he "knew" was guilty could not do it again."

-Is there anything wrong with that assuming the person is infact 100% guilty but let's say got off b/c of an expensive lawyer or a technicality? Ever see the movie Boondock Saints? Killing scumbags is an ancient right to us Irish.

What about Madoff- if found guilty he will go to a white collar resort prison. Fair to say our justice system has failed? Is justice not shooting him in the head?